The U.S. District Court for the Southern District of California has dismissed a suit alleging a violation of the Telephone Consumer Protection Act (TCPA) by a bank that made unwanted autodial calls to a plaintiff’s cell phone, ruling that the plaintiff did not show sufficient “concrete injury” to confer standing under the U.S. Supreme Court case of Spokeo v. Robins.
In Romero v. Department Stores National Bank, the plaintiff filed suit against the bank for making more than 290 calls to her cell phone over a six-month period using an automated telephone dialing system in violation of the TCPA. The plaintiff answered only three of those calls.
After the case was scheduled for trial, the plaintiff submitted a pre-trial memorandum and the court entered a pre-trial order prepared by both parties. Because none of the documents included any reference to actual damages incurred by the plaintiff, defendant filed a motion to dismiss for lack of standing.
Under Spokeo, a plaintiff must meet three criteria to establish standing: (1) have suffered an injury in fact; (2) the injury can be traced to the defendant’s conduct; and (3) the injury is likely to be redressed by a favorable judicial decision.
In granting the motion to dismiss, the court noted that each alleged violation of the TCPA is a separate claim and a plaintiff must establish an injury in fact for each separate violation. In examining whether or not the plaintiff could claim injury, the court divided the autodial calls into three categories: (1) calls that the plaintiff was not aware of either because her phone did not ring or she did not hear it; (2) calls that the plaintiff heard but did not answer; and (3) calls the plaintiff answered and spoke with defendant’s representative.
For calls that the plaintiff was unaware of, the court found the plaintiff lacked standing because, “That Defendants placed a call to Plaintiff’s cell phone using an ATDS is merely a procedural violation. For Plaintiff to have suffered ‘lost time, aggravation, and distress,’ she must, at the very least, have been aware of the call when it occurred.”
For calls that the plaintiff heard but did not answer, the court found the plaintiff lacked standing because, “No reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing.”
For calls that the plaintiff answered and spoke with a representative of the defendants, the court found the plaintiff lacked standing because, “Plaintiff does not offer any evidence demonstrating that Defendants’ use of an ATDS to dial her number caused her greater lost time, aggravation, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA. Therefore, Plaintiff did not suffer an injury in fact traceable to Defendants’ violation of the TCPA, and lacks standing to make a claim for any violation attributable to the calls she actually answered.”
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